AIR-11.0 Training September 16, 2008 POLITICAL ACTIVITIES AIR-11.0 Training September 16, 2008 As the campaign season heats up, inquiries about political activities by civilian and military personnel increase, so to assist you in answering these I have a short presentation and handouts for you. In your folder you will find….

The Hatch Act – 5 U.S.C. §§ 7321-7326; 5 C.F.R. 733 & 734 “It is the policy of the Congress that employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation.” The Hatch Act governs the political activity of government employees at the federal, state and local levels. It can be found at 5 U.S.C. sections 7321-26 and OPM’s implementing regulations at 5 C.F.R. parts 733 and 734.

What is Political Activity? 5 U.S.C. 7324; 5 C.F.R. 734.101 - An activity directed toward the success or failure of a Political party, Candidate for partisan political office, or Partisan political group

Examples Political activity Not political activity “Vote for _____” “I support _____” “Register for _____” Not political activity NRA ACLU “Pro-Choice” “I Support the War” “Peace, Not War”

Two Categories of Employees (5 U.S.C. 7322; 5 C.F.R. 734.101) MORE RESTRICTED CAREER SES EMPLOYEES OF INTELLIGENCE- AND ENFORCEMENT-TYPE AGENCIES LESS RESTRICTED ALL OTHERS GS WG PAS* SCHEDULE C* NONCAREER SES*

Less Restricted But… DOD places greater restrictions on certain employees 59 FR 54515 - Presidential Memo delegated authority to SECDEF to limit the political activities of political appointees of the Department of Defense, including Presidential appointees, Presidential appointees with Senate confirmation, noncareer SES appointees, and Schedule C appointees. See 14 Nov 07 DEPSECDEF Memo, Civilian Employees’ Participation in Political Activities

Less Restricted Dos Generally, employees MAY engage in partisan political organization, campaign, and election-related activities outside of the workplace, on their own time and in their personal capacities Be a member/serve as an officer of a political party Attend/participate in/speak at a political convention, caucus, or rally Manage a campaign, canvass for votes, distribute literature, initiate or circulate a petition Endorse or oppose a candidate publicly Vote, serve as an election judge/clerk, act as recorder/watcher/challenger at polling place, drive voters to a polling place MOST FEDERAL CIVILIAN EMPLOYEES MAY ACTIVELY PARTICIPATE IN POLITICAL ACTIVITIES ON THEIR OWN TIME AND OUTSIDE THE FEDERAL WORKPLACE.  THERE ARE SIGNIFICANT RESTRICTIONS ON FUNDRAISING, RUNNING FOR OFFICE IN PARTISAN ELECTIONS, USING ONE'S OFFICIAL AUTHORITY OR INFLUENCE TO INTERFERE WITH OR AFFECT THE RESULT OF AN ELECTION, AND ENGAGING IN SUCH ACTIVITIES IN ANY FEDERAL WORKPLACE that you will see on the next few slides.

Less Restricted Dos Employees MAY display political signs, stickers, buttons, etc. But NOT while on duty, in a Government office or building, or using a Government vehicle May place political stickers on privately-owned vehicles even if they park in a Government lot or occasionally drive themselves to attend meetings

Less Restricted Dos Employees MAY run for non-partisan office Non-partisan means an office to which political parties may not designate candidates May not seek or advertise the endorsement of a political party, print partisan campaign literature, or use political party resources

Less Restricted Dos Employees MAY: Make political contributions Manage/organize a political fundraiser hosted or sponsored by others Attend, speak, or be a featured guest at a political fundraiser, provided their official titles are not used and they do not personally solicit contributions Note that 5 C.F.R. 2635.808 also restricts employees’ fundraising activities

Issue – Use of E-mail DEPSECDEF Memo states that employees MAY use work e-mail to discuss political subjects in a manner similar to “water-cooler” conversation BUT may not send messages to a high number of people for purpose of encouraging recipients to support or oppose a candidate, political party or partisan group. A word of advice: avoid using email altogether NASA employee recently suspended 180 days for using Government email account to send partisan political emails and making partisan political postings to his blog while on duty in the workplace. 4 MSPB decisions led to OSC changing their advisory opinion on the use of email resulting in change to DEPSECDEF memo. (See separate paper for case summary.) Ex of ok use – employee on duty emails a few co-workers with whom the employee regularly engages in friendly political debate a newspaper column critical of one of the presidential candidate’s tax proposals with a statement supporting the columnist’s views. Ex of not ok – sending a mass email advocating for the success of a presidential candidate. When reviewing use of email look at whether the email was sent on or off duty; from government computer; whether the content of the email amounts to partisan campaigning, and whether the audience of the email indicates a private discussion or a general announcement.

DON’Ts Employees MAY NOT use their official authority or influence to interfere with or affect the result of an election Use official title while participating in permitted political activity Use authority to coerce anyone to participate in political activity Solicit or receive uncompensated volunteer services from a subordinate Solicit or discourage the participation in a political activity of anyone with official matters before DOD

DON’Ts E.g., Fauquier County Employees MAY NOT run for partisan political office Except as independent candidates in certain local elections, 5 U.S.C. 7325; 5 C.F.R. Part 733 E.g., Fauquier County Running for office begins when an individual Begins to collect signatures for nominating petition, Begins to fundraise, Makes an announcement to the press, or Puts a campaign committee together LESS RESTRICTED EMPLOYEES WHO RESIDE IN DESIGNATED LOCALITIES 5 CFR 733.107 (c) MAY – RUN AS INDEPENDENT CANDIDATES IN PARTISAN ELECTIONS FOR LOCAL OFFICE IN THAT DESIGNATED LOCALITY SOLICIT, ACCEPT OR RECEIVE A POLITICAL CONTRIBUTION ON BEHALF OF AN INDEPENDENT CANDIDATE IN A PARTISAN ELECTION FOR LOCAL OFFICE (EXCEPT MAY NOT SOLICIT A FEDERAL EMPLOYEE) ACCEPT OR RECEIVE A POLITICAL CONTRIBUTION FOR A PARTISAN CANDIDATE FOR LOCAL OFFICE (EXCEPT FROM A SUBORDINATE) SOLICIT, ACCEPT OR RECEIVE UNCOMPENSATED VOLUNTEER SERVICES IN THE PRECEDING THREE INSTANCES (EXCEPT FROM A SUBORDINATE) FURTHER RESTRICTED EMPLOYEES WHO RESIDE IN DESIGNATED LOCALITIES MAY – SOLICIT, ACCEPT OR RECEIVE A POLITICAL CONTRIBUTION ON BEHALF OF AN INDEPENDENT CANDIDATE IN A PARTISAN ELECTION FOR LOCAL OFFICE (EXCEPT MAY NOT SOLICIT A FEDERAL EMPLOYEE ACCEPT OR RECEIVE A POLITICAL CONTRIBUTION FROM A SUBORDINATE) SOLICIT, ACCEPT OR RECEIVE UNCOMPENSATED VOLUNTEER SERVICES IN THE PRECEDING TWO INSTANCES (EXCEPT FROM A SUBORDINATE) NOTE: St Marys and Calvert County are listed.

DON’Ts Employees MAY NOT participate in certain political fundraising activities Solicit or receive political contributions (including anonymously over the phone) Allow the use of their official titles in relation to political fundraising Host or sponsor a political fundraiser

More Restricted - Rules Applicable to Career SES

Additional DON’Ts Same restrictions as other employees plus additional restrictions

SES DON’Ts MAY NOT participate in political organization activities Serve as officers of a political party Serve as delegates to a convention Speak at a political convention, caucus, or rally if done in concert with a candidate, political party, or partisan group But may speak at a political event (not a fundraiser) on issues of national defense or foreign policy

SES DON’Ts MAY NOT host, sponsor, manage, organize, sell tickets to, promote, address, or be a featured guest at a political fundraiser But may be present solely as an attendee

SES DON’Ts MAY NOT Manage a political campaign Initiate or circulate a petition Canvass for votes, distribute literature, or endorse/oppose a candidate publicly in concert with a candidate, political party, or partisan group Provide volunteer services to a political campaign

SES DON’Ts MAY NOT act as recorders, watchers, or challengers at, or drive voters to, a polling place for a candidate, political party, or partisan group

Enforcement of Hatch Act 5 U.S.C. 1215, 1216 When warranted after investigation of an alleged Hatch Act violation, the U.S. Office of Special Counsel (OSC) will prosecute violations before the Merit System Protection Board (MSPB).  Or before the President for Presidential appointees. When violations are not sufficiently egregious to warrant prosecution, OSC may issue a warning letter to the employee involved.

OSC Role OSC is an independent investigative and prosecutorial agency in the Executive Branch. Enforces the Hatch Act, but also answers questions and provides advisory opinions about the Act’s restrictions on political activity. Does not advise on DOD’s rules Website: http://www.osc.gov

Penalties, 5 U.S.C. 7326 Removal Unless the Merit System Protection Board (MSPB) finds by unanimous vote that the violation does not warrant removal In that case, not less than 30 days' suspension without pay Mitigating and aggravating factors considered by the Board in determining a penalty include: The nature of the offense and extent of participation; Motive and intent; Did employee receive advice from counsel; Did employee cease activities; Employee’s past employment record; and The political coloring of the employee’s activities.

How to File a Hatch Act Complaint Filers alleging a violation of the Hatch Act may use Form OSC-13 (Complaint of Possible Prohibited Political Activity, available on OSC website) to submit their allegation to OSC.   If filers use another format to submit a Hatch Act violation, the following information should be included:  name, mailing address, and telephone number of the complainant, and a time when the complainant can be safely contacted, unless the matter is submitted anonymously; the department or agency, location, and organizational unit complained of; and a concise description of the actions complained about, names and positions of employees who took these actions, if known to the complainant, and dates, preferably in chronological order, together with any documentary evidence the complainant may have. Complaints should be sent to: Hatch Act Unit U.S. Office of Special Counsel 1730 M Street, N.W., Suite 201 Washington, DC 20036-4505 Fax (202) 653-5151

Political Activities by Members of the Armed Forces DOD Directive 1344.10 (Feb 08) Applies to members of the Armed Forces on active duty, retirees and members of reserve components not on active duty, officers, and enlisted. General policy – “Any activity that may be reasonably viewed as directly or indirectly associating [DOD] . . . with partisan political activity or is otherwise contrary to the spirit and intent of this Directive shall be avoided.” Very limited “private citizen” standard MEMBERS OF THE ARMED FORCES ON ACTIVE DUTY ARE SUBJECT TO MORE RESTRICTIVE RULES CONCERNING POLITICAL ACTIVITIES.

Political Activities by Members of the Armed Forces, cont. A member on active duty MAY engage in the following types of political activity: May register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the armed forces. May promote and encourage other military personnel to exercise their rights, provided such promotion does not constitute an attempt to influence or interfere with the outcome of an election. May join a political club and attend its meetings when not in uniform (but see below). May serve as a nonpartisan election official out of uniform with the approval of the Secretary of the Navy. May sign a petition for specific legislative action, provided the signing thereof does not obligate the member to engage in partisan political activity and is taken as a private citizen. May write a nonpartisan letter to the editor of a newspaper expressing the member's personal views concerning public issues (in private capacity). May write a personal letter, not for publication, expressing preference for a specific political candidate or cause. May make monetary contributions to a political party or committee (subject to some limitations below). May display a political sticker on his / her private automobile. PERMISSIBLE ACTIVITIES INCLUDE REGISTERING TO VOTE AND VOTING AS YOU CHOOSE, ENCOURAGING OTHERS TO VOTE, MAKING A FINANCIAL CONTRIBUTION TO A PARTISAN PARTY OR CANDIDATE, PARTICIPATING FULLY IN THE FEDERAL VOTING ASSISTANCE PROGRAM, AND DISPLAYING ONE PARTISAN BUMPER STICKER ON A MARINE'S POV. 

Political Activities by Members of the Armed Forces, cont. A member on active duty may NOT engage in the following types of political activity: May not use official authority or influence for the purpose of interfering with an election, affecting the outcome thereof, soliciting votes for a particular candidate or issue, or requiring or soliciting political contributions from others. May not campaign as nonpartisan (as well as partisan) candidate or nominee. May not participate in a partisan campaign or make public speeches in the cause thereof. May not make, solicit, or receive a campaign contribution for another member of the armed forces or for a civilian officer or employee of the United States promoting a political cause. May not allow or cause to be published political articles signed or authored by the member for partisan purposes. May not serve in any official capacity or be listed as a sponsor of a partisan political club. May not peak before a partisan political gathering of any kind to promote a partisan political party or candidate. May not participate in any radio, television, or other program or group discussion as an advocate of a partisan political party or candidate. May not conduct a partisan political opinion survey or distribute partisan political literature. May not perform clerical or other duties for a partisan political committee during a campaign or an election day.

Political Activities by Members of the Armed Forces, cont. May not solicit or otherwise engage in fund-raising activities in Federal offices or facilities for a partisan political cause or candidate. May not march or ride in a partisan political parade. May not display a large political sign on top of his / her private automobile, as distinguished from a political sticker. May not display partisan political signage on government owned or contracted housing (unless other housing standards do not forbid, “Get out and Vote” is allowed, “Vote for Candidate X” is not). May not participate in any organized effort to provide voters with transportation to the polls. May not sell tickets for or otherwise actively promote political dinners. May not be a partisan candidate for civil office during initial active-duty tours or tours extended in exchange for schools. May not for a Regular officer on active duty, or retired Regular officer or Reserve officer on active duty for over 180 days, hold or exercise the functions of any civil office in any Federal, state, or local civil office-unless assigned in a military status or otherwise authorized by law [10 U.S.C.A. § 973(b)]. May not hold U.S. Government elective office, Executive schedule position, or position requiring Presidential appointment with the advice and consent of Congress. May not participate (even anonymously) in any survey or similar poll that includes any reference to military status. PROHIBITED ACTIVITIES INCLUDE PARTICIPATING IN PARTISAN POLITICAL FUNDRAISING ACTIVITIES, USING OFFICIAL AUTHORITY TO INFLUENCE OR INTERFERE WITH AN ELECTION, MARCHING OR RIDING IN PARTISAN PARADES, SPEAKING BEFORE A PARTISAN POLITICAL GATHERING, PERFORMING CLERICAL OR OTHER DUTIES FOR A PARTISAN POLITICAL COMMITTEE OR CANDIDATE DURING A CAMPAIGN, DISPLAYING A LARGE POLITICAL SIGN (AS DISTINGUISHED FROM A BUMPER STICKER) ON A PRIVATE VEHICLE, AND DISPLAYING A PARTISAN POLITICAL SIGN, POSTER, BANNER, OR SIMILAR DEVICE VISIBLE TO THE PUBLIC AT ONE'S RESIDENCE ON A MILITARY INSTALLATION (EVEN IF THAT RESIDENCE IS PART OF A PRIVATIZED HOUSING DEVELOPMENT).

Use of DoD Resources Guidance is found in SECDEF Message 281449Z JAN 08, DoD Public Affairs Policy Guidance Concerning Political Campaigns and Elections. All requests from political campaign organizations to use DOD facilities must be handled by a public affairs officer. Use of DOD facilities for campaign events is prohibited. Town hall meetings, speeches, press conferences. Elected officials may visit installations to receive briefings, tours, official DOD information.

Use of DOD Resources, cont. Command newspapers – no campaign news; partisan discussions, cartoons, editorials, or commentaries; or surveys/straw polls. Off-installation events – no support, except joint color guard at national political conventions. DOD may not prohibit use of facility as official polling place if so designated as of 31 Dec 00 or if used as such since 1 Jan 96

Other Restrictions No solicitation of fellow Federal employees for campaign contributions, 18 U.S.C. 602. No contributing to any other Federal employee who is the contributor’s employer or employing authority, 18 U.S.C. 603. No threats or intimidation to secure contributions, 18 U.S.C. 601, 606. No solicitation or receipt of contributions in any room occupied in discharge of official duties, 18 U.S.C. 607. No paying/receiving of pay to vote or withhold vote, 18 U.S.C. 597. No promising of benefits as reward for political activity, 18 U.S.C. 600. No intimidation of voters, 18 U.S.C. 594. No coercing political activities of Federal employees, 18 U.S.C. 610.

Other Restrictions, cont. No interference with rights under Uniformed and Overseas Citizens Absentee Voting Act, 18 U.S.C. 608. No assembling troops at polls or election interference by Armed Forces, 18 U.S.C. 592, 593. No polling of Armed Forces, 18 U.S.C. 596. No use of military authority to influence votes of other military members 18 U.S.C. 609.

DEPSECDEF Memo, Contacts with Presidential Campaigns, 22 Jul 08 Forwards memo from Counsel to the President, 22 Apr 08. Requires prior approval by DEPSECDEF or head of DOD Transition (when appointed) before DOD employees may make contact in their official capacities with the campaign committee of a Presidential candidate. Appears to apply even to otherwise legally permissible/required contacts (e.g. FOIA requests).

Thank you!

BACK-UP SLIDES

Rules Applicable to PAS and Non-Career SES

Hatch Act, 5 U.S.C. 7324(b); 5 C.F.R. PART 734, SUBPART E Certain employees whose duties and responsibilities continue outside normal business hours/while away from the normal duty post and are Paid from an appropriation for the Executive Office of the President, or Appointed by the President and Senate-confirmed (PAS) May engage in political activity while on duty, in Government workplace, wearing uniform/official insignia, and in a Government vehicle IF costs associated with activity are not paid for by U.S. Government But DOD policy is to restrict the activities of these employees

DOD Policy MAY NOT participate in any activity that could be interpreted as associating DOD with a partisan political cause or issue. Restrictions are similar to those for Career SES, Members of Contract Appeals Boards, and NSA, DIA, NGA Employees But more restrictive because in some cases, may not matter if activity done “in concert with a candidate, political party, or partisan group”

Bumper Stickers, etc. Unclear whether these employees may express political opinions publicly Policy simply states that they may express political opinions “privately”